C’ville Part XVI: Defense Rests After One Day; Observers Argue Over the Strategy; Judge Moon Favors Plaintiffs in Unbalanced Jury Instruction

Defense finished their closing arguments on Wednesday in the civil case of Sines v Kessler, with the highlight being pro se defendant Christopher Cantwell’s direct and cross-examination of plaintiffs’ testimony.

Judge Norman K. Moon then read the jury instructions to the jury, followed by a lengthy debate among counsel and the judge over certain key instructions, chief among them the First Amendment right to advocate for political violence so long as it’s not incitement to imminent violence, and details of self-defense law.

Almost all of the wording of the instructions appeared to heavily favor the plaintiffs. The instructions left little room for jurors to find defendants not liable.

“Moon instructs jury that defendants Kline and Ray did the alleged conspiracy because they did not cooperate with this farcical process. So, in other words, the judge says that it must be taken as an assumption that a ‘conspiracy to engage in racially motivated violence’ happened at Unite the Right,” said Gregory Conte of the National Justice Party. “The jury's only job is to decide if each defendant participated. And, given the extremely confusing and broad language of the jury instructions, all human activity meets the government's definition of a conspiracy.”

Eric Striker, editor-in-chief for National-Justice.com, on his Telegram channel, agreed.

“Moon is telling the jury that if defendants conspired to engage in self-defense but had racial animosity they are still liable,” Striker said. “Further he says that the burden of proof is on the person asserting self-defense.”

Mike Peinovich, Chairman of the National Justice Party, said on his Telegram, was even more blunt.

“As bad as US law is, I do not believe it actually says that you cannot defend yourself if you don't like the person attacking you. Roberta Kaplan bragged before this trial that she would be asking the judge to instruct the jury to assume that certain things were true a priori, one of them being that defendants committed a racially motivated conspiracy,” Peinovich said. “The judge is now doing this. I assume that these jury instructions were prepared by Moons clerks in collaboration with the plaintiffs.”

The defenses’ decision to put on little or no case compared to the 17 days the plaintiffs took caused a lot of online speculation among trial observers and lawyers not involved in the case.

“The decision by defense in Charlottesville to skip putting up a case for the sake of brevity is a massive and unnecessary risk,” Striker said. “If the violence at Charlottesville wasn’t a Nazi racist conspiracy, then what was it?

“They could’ve easily demonstrated that all of the violence that happened at Charlottesville was instigated by Antifa. They did not,” Striker said. “Moon says that the rules in civil court are essentially guilty until proven innocent. If he doesn’t play ball with jury instructions distinguishing between free speech and illegal speech, which he doesn’t seem to want to, the defense could be in trouble.

“The idea that after 3 weeks straight of one side demonizing you as a criminal and terrorist you decide not to mount a muscular counter attack – which could’ve been done in a mere 2 or 3 days – because everyone is tired and wants to go home is not in my view a sound legal strategy,” he said. “I'm happy to be wrong. I’m not a lawyer so take what I say with a grain of salt.”

Another observer disagreed.

“Cantwell over the past 3 weeks as shown every single witness to be unreliable. He has also made their evidence work for the defense. The jury is already sick of the plaintiffs dragging this thing on for a week and a half longer than it needed to be. Bringing a whole bunch of extra people on makes this look more like a conspiracy not less,” he said in a chat.

Another contrary view came from a trial observer who is a lawyer but not involved with the case.

“The idea of not putting on a defense is that everything that could be said to help them already came out. There’s nothing new to add at this point that can be added. And if it didn’t work in their favor the first time, it won’t the second time,” he said.  “So instead of trotting the same things back out again, they will rest, and bring up all the issues in the very succinct and coherent manner during closing arguments.”

Peinovich said he thought it was a missed opportunity.

“There is a good argument for a brief and to the point defense in the Cville case, there is not IMO a good argument for simply not mounting a defense at all,” Peinovich wrote.

Yet another observer with a legal background not involved with the trial agreed with Striker and Peinovich.

“Getting the last word on evidence and witnesses is a golden opportunity and defendants minus perhaps Cantwell pissed it away. Not wanting to piss off the jury's by taking up their time is a contrived excuse and Moon is boxed in after letting the plaintiffs tear up the schedule,” he said. “Aside from the couple attorneys who are deliberately trying to throw the case, there is no excuse not to bring on normal people like Hunter and Mike [Peinovich, originally a party to the lawsuit] to testify as to planning and Antifa violence. Defendants can also make clear in closing they don't want to be there either.

“The jury has watched enough television to know that the defense is, in theory, entitled to equal time. Even if Cantwell has shredded the plaintiffs witnesses credibility, they're still the plaintiff's witnesses and the jury will expect the defense to put on a similar parade of witnesses,” he said.

“Hell, they probably could have caused a secondary Antifa chimp-out by trying to qualify Andy Ngo as an expert witness and bringing him to Charlottesville, not to mention KMac [Kevin McDonald]. Basically there are a million things the defense could have done and they didn't,” he said.

However, the lawyer mentioned initially disagreed.

“That person thinks qualifying expert witnesses like Andy Ngo or kmac is doable all Willy Nilly like,” he said. “It would have been a huge time and money drain for defendants to even try it who already had almost no money for a fight on the main issues.

“These people opining act like the defense had money. Every little thing they are saying costs a lot of time and money. Which there wasn’t,” he said. “By the time [TWP defense attorney] Josh Smith came on the case, it window had long closed to try to get expert witnesses established for the plaintiff. A lot of this boils down to them asking ‘Why don’t defendants have $20 million dollars to match the plaintiffs legal war chest?’”

Striker was less optimistic.

“Their chances of losing has jumped exponentially,” Striker said.

The Full Haus Channel was even more pessimistic regarding the jury instructions.

“It sounds like the fix is in in Charlottesville. Jury instructions sound like a wink and a smirk could be interpreted as conspiracy to commit racially motivated violence,” they posted. “Absence of evidence is not evidence of absence!

“If the defendants lose, Jews will have enshrined in law that you cannot go anywhere where Antifa might be reasonably assumed to attack you,” they posted.

The trial resumes Thursday and will have plaintiffs’ and defendants’ closing arguments.

As always, National Justice cautions readers that how testimony and evidence is received by outside observers is not necessarily how a jury will receive it. Predicting the outcome of a jury trial is always problematic for that reason.

The trial was originally expected to last two more weeks including this week, but word in the court room is now that it will go longer.

This is a civil trial and the jury consists of 12 members with no alternates. Jurors could drop out or be dismissed, but as long as six remain there can be a verdict.

The standard of finding here is a preponderance of the evidence, not beyond a reasonable doubt. A finding of liability in this court would require a unanimous verdict.

At heart in this case, is the 10 plaintiffs and their attorneys who allege that the defendants “conspired to commit racially motivated violence” at the legally permitted Unite the Right rally held in August 2017. The 2017 lawsuit – amended in 2019 – lists 20 White nationalist organizations and individuals, including the Daily Stormer’s Andrew Anglin, Matt Parrot, Matt Heimbach, Jason Kessler, Richard Spencer, Christopher Cantwell, the League of the South, the National Socialist Movement, the defunct Traditional Workers Party and Identity Evropa, and at least two chapters of the Ku Klux Klan.

The linchpin of the plaintiff’s lawsuit is the claim that organizers planned the rally with the purpose of committing violence. The independent Heaphy Report, which plaintiffs have desperately tried to avoid being introduced as evidence in the case, proves this accusation to be a blatant falsehood.